Johnson v Commissioner of Police
[2011] QDC 18
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- Unreported Judgment
- Johnson v Commissioner of Police[2011] QDC 18
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Johnson v Commissioner of Police[2011] QDC 18
Johnson v Commissioner of Police[2011] QDC 18
DISTRICT COURT OF QUEENSLAND
CITATION: | Johnson v Commissioner of Police [2011] QDC 18 |
PARTIES: | WAYNE OWEN ROBERT JOHNSON appellant V COMMISSIONER OF POLICE |
FILE NO/S: | 121 of 2010 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Gatton |
DELIVERED ON: | 15 February 2011 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 14 February 2011 |
JUDGE: | Bradley DCJ |
ORDER: | Appeal allowed. Order made in Magistrates Court Gatton on 12 October 2010 varied and parole release date varied to 14 February 2011. Respondent ordered to pay the Appellant’s costs fixed at $1800. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – DRIVING OFFENCES – where ordering a parole release date after serving more than half the sentence term is unusual, unless reasons are given – whether the Magistrate denying any release on parole was manifestly excessive – whether the sentence should be varied so that the appellant can be released on parole – where appellant has significant and relevant traffic history Bandman v Commissioner of Police [2010] QDC 107, cited Hartwig v Cameron [2010] QDC 28, cited Knibbs v R [2008] QDC 288. cited R v Kitson [2008] QCA 86, applied Whyte v State of Queensland [2008] QDC 256, cited Whyte v Queensland Police Service [2010] QDC 29, cited. |
COUNSEL: | G W Walsh K M Christopherson |
SOLICITORS: | M Stone Solicitor Office of Director of Public Prosecutions |
- [1]On 12 October 2010 the appellant pleaded guilty in the Gatton Magistrates Court to a charge of driving a motor bike whilst disqualified from holding a driver’s licence. The offence was committed on 26 September 2010 at Regency Downs. The appellant was sentenced to six months imprisonment and the magistrate fixed his parole release date as 11 April 2011 being the last day of his term of imprisonment.
- [2]This appeal is against the order for the parole release date. The appellant argues that a much earlier parole release date should have been set. It was conceded on behalf of the respondent that the magistrate should have given the appellant the benefit of a parole release date prior to the last day of his term of imprisonment and when this matter was heard before me on 14 February 2011, I varied the order made by the magistrate on 12 October 2010 and ordered that the appellant be released on parole on 14 February 2011. I further made an order that the respondent pay the appellant’s costs of the appeal fixed at $1,800.
Facts
- [3]The facts placed before the magistrate by the police prosecutor were that at about 20 to 1 in the afternoon on 16 September 2010 police observed the appellant riding a mini motor cross bike on Rons Road, Regency Downs. The police intercepted the vehicle and the appellant gave police his name. The appellant was not wearing an approved motor bike helmet and he further admitted to police that his licence was currently disqualified. The appellant had been disqualified from holding or obtaining a drivers licence on 3 August 2010 in the Gatton Magistrates Court.
Criminal and traffic history
- [4]The appellant, who was 24 years of age, has an extensive traffic record in Queensland which includes the following convictions:
Offence Date | Charge | Conviction Date | Penalty |
29.2.2004 | Disqualified driving | 17.3.2004 | Fine - $1,000 |
28.6.2004 | Disqualified driving | 22.10.2004 | Fine - $1,500 |
29.6.2004 | Disqualified driving | 22.10.2004 | 6 months imprisonment |
27.11.2004 | Disqualified driving | 5.4.2005 | 2 years probation & 100 hours community service |
15.1.2008 | Disqualified driving | 21.2.2008 | 8 months imprisonment |
18.8.2008 | Disqualified driving | 10.9.2008 | 6 months imprisonment |
29.6.2010 | Disqualified driving | 3.8.2010 | 200 hours community service |
- [5]Additionally the appellant has a number of convictions for other offences against the traffic laws including convictions for unlicensed driving. The appellant also has convictions for drug offences, failures to appear in court in accordance with his bail undertaking and the summary offences of unlawful possession of suspected stolen property and contravention of a police direction or requirement.
Matters raised by the defence
- [6]The appellant’s solicitor told the magistrate that the appellant was in receipt of Centrelink payments and had quite limited education. He was in a de facto relationship. His partner was in court and he and his partner have two “very young children”. The appellant’s mother died about two months prior to the sentence and his father was very ill. The magistrate was told that the appellant has “a cannabis problem”.
- [7]So far as the facts were concerned it was submitted that the appellant was taking the motor bike “a very short distance along the road to a deserted area so that he could ride the motor bike”.
- [8]The magistrate heard from a representative of Corrective Services who told him that the appellant was “ready willing and able” to undertake a community based order and that he had done “quite well” in relation to his current community service order.
Magistrate’s sentencing remarks
- [9]The magistrate referred to the appellant’s previous convictions for disqualified driving and indicated that community based orders or a suspended term of imprisonment were not appropriate penalties in the circumstances.
- [10]When the magistrate received further submissions on behalf of the appellant regarding a parole release date at about one third of the head sentence he replied “that parole is not an appropriate penalty as far as your client is concerned”.
- [11]In his sentencing remarks the magistrate referred to the appellant’s early plea of guilty, his relatively young age and his health problems. He also noted that imprisonment would have an adverse effect on his family. The magistrate noted however the appellant’s appalling traffic history and the fact that he had previously received penalties of fines, probation, community service, an intensive correction order, a suspended period of imprisonment and immediate parole release and that the appellant had “squandered each and every one of those”.
- [12]The magistrate somewhat puzzlingly told the appellant “you’re the prime mover in this offence, the offence being for your personal gain”. He also referred to the prevalence of the offence and the need for both personal and general deterrence to be reflected in the penalty. The magistrate told the appellant that “you demonstrate a sheer contempt for the laws of this State and the orders of its courts in an attempt to rehabilitate you”. He also noted the “sentencing guidelines and sentencing options open and available to me” and the principle that a sentence of imprisonment is a sentence of last resort.
The law
- [13]The Court of Appeal held in R v Kitson[1] that “where [an appellant] has a claim upon the discretion of the court for an order to be released after serving less than half of the sentence in view of the plea of guilty and other personal circumstances, a parole release date that is significantly beyond the mid point of the head sentence is very unusual.” If such an unusual order is made, reasons for doing so are required to be given. Further, where such an unusual aspect of the sentence was not sought or contemplated in the submissions of either party, it should not be imposed without the sentencing judge or magistrate adverting to it and giving the opportunity to the parties to be heard.[2] In this case the magistrate did receive submissions on behalf of the appellant regarding a parole release date.
- [14]It was conceded on behalf of the respondent that in this case the magistrate did not give any or sufficient reasons in his sentencing remarks for not ordering an earlier parole release date.
- [15]The principles outlined in the decision of Kitson have been applied by this court on appeal in similar cases on numerous occasions.[3] The facts and circumstances of this case, particularly the appellant’s plea of guilty, indicate that the appellant should have been given a parole release date at least around the midpoint of the head sentence.
- [16]It was conceded on behalf of the respondent that the sentence imposed by the magistrate was manifestly excessive and that the sentence should be varied to allow for the appellant’s release on parole. As at the date of hearing of the appeal the appellant had served four months of the six months term of imprisonment and it was conceded that an order for his release on the date of hearing was appropriate.